Lusengo (Migration)

[2018] AATA 5237

Lusengo (Migration) [2018] AATA 5237 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ian Lusengo

CASE NUMBER:  1621970

HOME AFFAIRS REFERENCE:                BCC2016/3147443

MEMBER:Lilly Mojsin

DATE:13 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 December 2018 at 2:11pm

CATCHWORDS
MIGRATION – cancellation – Subclass 573 Higher Education Sector visa – not enrolled in a registered course – not enrolled since 2015 – failed subjects – financial issues – compelling circumstances – mother’s illness and inability to pay fees beyond applicant’s control – applicant’s efforts to save money – would suffer hardship if returned – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116(1)(b, 140

Migration Regulations 1994, Schedule 2, condition 8202(2)

CASES

Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course and therefore had breached condition 8202(2) of the visa.

3. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the application.

4. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present review is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present review, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

8. The Department sent to the applicant a Notice of Intention to Cancel [NOIC] the visa on 11 November 2016.  The Notice stated that the grounds for cancellation arose when the applicant failed to maintain his enrolment in a registered course of study. At the time the Notice was sent it appeared that the applicant had not been enrolled in a registered course of study since 3 December 2015. At the Tribunal hearing the applicant agreed that he was not enrolled in a registered course.

9. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

10. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion.

11. The Tribunal has also had regard to matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. These are as follows:

12. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant came to Australia and completed an Advanced Diploma of IT in 2012. The applicant then enrolled in a Bachelor of IT in December 2013. He was going well until he failed 4 subjects in September 2015. The university gave him a warning. He was required to resit the exams but he was not able to do so as he did not have money to pay his fees. The university excluded him in September 2015. He tried to enrol again in February 2016 but he did not have the money. He did not return back to Zambia as his mother had taken out a loan and if he went back home his mother would have lost the house. This was because he was working in Australia and paying for the loan.  The applicant re-enrolled in a course of study in November 2016. He was advised that if he failed one subject then it was an immediate exclusion. He failed one subject. He wants to complete the course. He supported himself working part time in hospitality. He has met someone who is helping him cope.

13. The Tribunal places weight on the applicant not being enrolled in a registered course since August 2015. The Tribunal weighs this factor in favour of cancellation.

14. In regard to have a compelling need to remain in Australia, the applicant has met someone in Australia, she is helping him. She is a resident and she has completed nursing, she is from Kenya.

15. The expression 'compelling circumstances' is not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The Tribunal is not satisfied that merely because the applicant has met an Australian resident that it is a compelling circumstance. The Tribunal weighs this factor in favour of cancellation.

16. In regard to whether the applicant's non-compliance with the visa condition was due to circumstances beyond his control, the applicant’s mother suffered from an illness, she was unable to pay his fees and he had to help his mother financially. He became stressed and he started gambling hoping that he could win. In the process he started drinking and using substances.  He has stopped drinking and using substances and has been seeing a counsellor. He wants to study again at the same university. He made enquiries and they said he could do so but he must pay the fees, $10 000. He has now saved $8000 with his girlfriend to pay his fees. The Tribunal is satisfied that the applicant’s mothers inability to pay his fees in order for him to repeat subjects he has failed were circumstances that were beyond the applicant’s control. The Tribunal weighs this factor in favour of not cancelling the visa.

17. In regard to any hardship which will result from cancellation of his visa, the applicant stated that he would not have anywhere else to go. He cannot go back to Zambia as life is hard in Zambia. There are no jobs, it is who you know and that is how you get a job. If you get qualifications internationally only then can you obtain a job. Asked about his mother’s loan he said that it is halfway paid. The Tribunal is satisfied that the applicant would suffer hardship on his return to Zambia. The Tribunal weighs this factor in favour of not cancelling the visa.

18. There is no evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor in favour of not cancelling the visa.  

19. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

20. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing before the Tribunal to suggest that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

21. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

22. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

23. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Lilly Mojsin
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.